Presiding over a trial in the federal Circuit Court in Corfield v. Coryell (1825) to recover a seized vessel, Supreme Court Justice Bushrod Washington took the occasion to ponder the expansive scope of the Privileges and Immunities Clause of Article IV of the Constitution. Because the clause is to facilitate interstate comity and harmony, it protects citizens traveling from one state to another against having the host state abridge their rights compared to those enjoyed by its own citizens, simply on account of the visitors’ out-of-state status. Not all rights are equally important, so Washington attempted a definition. The rights were those “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.”

Years later, in 1866, Congress adopted the Civil Rights Act as part of the Congressional Reconstruction program to protect the “civil [non-political] rights and immunities” of the newly freed slaves in the South against discrimination on the basis of race or prior condition of servitude. The Act protected the rights of all citizens “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to [have] the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishments.” The “citizens” in the Civil Rights Act were defined as “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”

The law’s sponsor, Senator Lyman Trumbull of Illinois, claimed that Congress could pass the Act through its power under Section 2 of the 13th Amendment to eradicate badges and incidents of slavery. Other members of Congress were unsure and decided that another amendment was needed to “constitutionalize” the Act. That became the task of the Joint Committee on Reconstruction.

The product was the 14th Amendment, whose provisions must be read as incorporating the gist of the Act and, more broadly, other aspects of Congressional Reconstruction. Section 1 of the Amendment directly addressed the substance of the Act, as the Amendment’s sponsors, Representative John Bingham of Ohio and Senator Jacob Howard of Michigan, assured their respective chambers. Sections 2 through 4 reflected broader reconstruction policies, while Section 5 gave Congress power to enforce the Amendment against states for violations. Once the Amendment was approved by the requisite number of states, Congress used its Section 5 power in 1870 to re-adopt the Act, thereby mooting any doubts as to its constitutional basis.

Section 1 of the Amendment first defines citizens as anyone “born or naturalized in the United States and subject to the jurisdiction thereof.” That fixes one’s status both as a citizen of the United States and of the state where one resides. The definition both builds on and rejects Chief Justice Taney’s approach in Dred Scott v. San[d]ford. Taney had found that it was a function of the federal government to define United States citizenship through the power over naturalization. State citizenship was irrelevant to determine national citizenship. In both the Act and the Amendment, Congress embraced Taney’s view.

However, Taney had also written that only the free inhabitants of the states had formed the Constitution and, thus, were U.S. citizens, a status they passed to their descendants. Beyond that, the federal government had failed to accord Blacks (free or slave) that status. The Act and, then, the Amendment negated Taney’s conclusion. The Amendment also distinguishes between national and state citizenship, as Taney had done. However, it rejects Taney’s strict parallelism that the two forms were mutually independent. Instead, it substitutes a concentric definition under which state citizenship is separate, but also derived from, national citizenship. There has been much controversy, especially recently, about “subject to the jurisdiction thereof” as that might apply to people born in the United States to parents who at the time were not legal permanent residents. Again, the Act’s definition (“not subject to any foreign power”) should provide authoritative meaning.

The same section also declares that no state shall “abridge the privileges and immunities of citizens of the United States; nor…deprive any person of life, liberty, or property without due process of law; nor deny to any person…the equal protection of the laws.” The structure clearly reflects the objectives of the Act, and much debate focused on the parallels thereto, especially as to the civil rights, privileges, and immunities people had as “citizens of the United States.” The due process clause addresses the Act’s goal that Blacks should have the same procedural protections and legal rights in court as Whites, such as to sue and testify. Those rights had been curtailed or denied to free Blacks as well as to slaves, even in Northern states. The equal protection clause manifests the Act’s policy to bring Blacks within the literal protection of a state’s law enforcement structure that some states had withdrawn from them in the face of Klan violence, and to assure that the same criminal punishments applied as for Whites.

As to the scope of “privileges and immunities,” both Representative Bingham and Senator Howard repeatedly insisted that the phrase incorporated all Bill of Rights protections as attributes of national citizenship, even if state constitutions did not provide such protections. This position would overrule the opinion by Chief Justice John Marshall in Barron v. Baltimore (1833), which had held that the Bill of Rights only limits the national government. Further, in a potentially massive expansion of protected rights well beyond those specifically mentioned in the text of the Constitution, Howard and others referred approvingly to Justice Washington’s elaboration in Corfield as a source. Trumbull had made the same points earlier in the debates over the rights protected under the Act. While the Amendment would recognize these rights as broadly belonging to all American citizens, state citizenship would define their particulars because states would retain their traditional control over the applications of those rights.

After the adoption of the 14th Amendment, it was only a matter of time before the Supreme Court would become involved in its interpretation. One of those early cases arose from a challenge to an 1869 Louisiana law that granted a 25-year monopoly to a company to operate slaughterhouses in and around New Orleans. While the historical corruption of Louisiana politics always arouses suspicion when exclusive franchises are awarded, the law was presented as addressing public health issues that arose with large-scale butchering of animals in growing cities. Independent butchers, who had to use this monopoly’s facility to process the livestock they purchased, claimed that the state violated the right to perform their trade, protected under the 13th and 14th Amendments and the 1866 Act.

The Supreme Court, by 5-4, rejected their claims in the Slaughterhouse Cases (1873). Justice Samuel Miller reviewed in detail the history of the amendments that revealed their purpose to be to establish basic protections for the newly freed slaves, not to benefit White tradesmen. He quickly dismissed the 13th Amendment claim, because having to pay the monopoly was not in any way like the legal status of slavery. Nor was it “involuntary servitude.”

Miller then parsed Section 1 of the 14th Amendment and determined that only rights, privileges, and immunities connected to national citizenship are protected. Compared to the broad range of rights under state citizenship, those rights are limited. They include the right to move from one state to another, to have access to federal offices, to have free access to seaports to conduct foreign commerce, and to have the protections of the federal government when in another country. The text of the Constitution provides at least some other such rights, such as the privilege of the writ of habeas corpus. Whatever their scope, those privileges and immunities do not include the right to be free from regulation of one’s trade, a matter traditionally for state law.

The opinion summarily rejected the claim that the substance of the law deprived the butchers of their liberty and property without due process of law. Finally, Miller denied that the law violated the equal protection clause, because history showed that the “existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause ….” Miller’s interpretation reflected the conservative view that the Reconstruction Era Amendments did not nationalize law and did not upset the traditional federalism of a limited constitutional domain for the national government and broad reserved powers for the states.

Two dissents are noteworthy. Justice Stephen Field wrote that only national citizenship matters. The “fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen, now belong to him as a citizen of the United States.” State citizenship is purely ministerial. States may affect the practical exercise of those rights, but cannot control their existence. As to the substantive meaning of those rights, Field adopted Washington’s expansive definition in Corfield as those that “belong to the citizens of all free governments.” Among those “must be placed the right to pursue a lawful employment in a lawful manner.” This interpretation alone was consistent with the language of the 1866 Act and its intimate relation to the adoption of the 14th Amendment. It was also textually consistent as it ascribed the same content to “privileges and immunities” in the 14th Amendment and in the interstate context of Article IV that had been at issue in Corfield.

If Miller’s narrow view of rights of national citizenship were correct, the 14th Amendment would be a “vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage,” Field wrote dismissively. Citing English common law and statutes against monopolies, the decree against monopolies of 1776 by Louis XVI, and the Declaration of Independence, Field exalted the right to pursue one’s happiness by engaging in any established trade or occupation, subject only to restraints that equally affect all others. He quoted approvingly from Adam Smith’s Wealth of Nations, “The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable.” To hinder that was a “plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him.” Most important, this right belonged to everyone, not just the freedmen. As established, Louisiana’s monopoly was not necessary for the public health and was merely a pretense for a grant of an exclusive privilege.

Justice Bradley also dissented. He generally echoed Field, but also proposed another solution: “In my view, a law which prohibits a large class of citizens from adopting a lawful employment…does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property.” Bradley’s due process rationale turned out to be crucial. Because the Supreme Court held in Paul v. Virginia in 1869 that corporations (or other artificial “persons”) are not “citizens,” they are not protected under the privileges and immunities clauses. The due process clause more broadly protects “persons,” so corporations (and aliens) could use it as a constitutional shield against state laws.

The emerging business interests were looking for constitutional protection against what they viewed as substantively arbitrary and intrusive state legislation. The identification of property with liberty regarding economic enterprise in the Slaughterhouse dissents resonated with the ethos of individualism and the free enterprise orientation of Americans at the time. More specifically, Adam Smith’s “liberty of contract” that Field mentioned became 14th Amendment dogma for a generation with cases such as Allgeyer v. Louisiana (1897) and Lochner v. New York (1905). The Court did not deny the states’ police power to legislate for the health, safety, morals, and welfare of the people, but it provided the justices with a tool to strike down what they perceived as senseless, often paternalistic, laws that impinged on freedom of choice. At the very least, as Field had implied in his dissent, legislatures had to provide more than a pretext for the law and had to show that the law clearly and narrowly advanced the alleged state interest.

Today, Miller’s narrow definition of the incidents of national citizenship make the privileges and immunities clause of limited constitutional utility. Instead, the Court has used substantive due process to incorporate certain Bill of Rights protections against the states and to protect selected aspects of “privacy” from governmental abridgment. Any restriction on such rights must meet the Court’s “strict scrutiny” that it is the least onerous way to achieve a compelling government interest. The controversies may be modern and the due process doctrine different, but today’s nationalized “rights jurisprudence” traces a direct line back through Lochner, the Slaughterhouse dissents and the Reconstruction-era debates to Justice Washington and Corfield.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

We see a critical Constitutional and Societal lesson demonstrated herein. Namely, when Rights are not definitive in the Constitution, pass a new amendment that redresses the confusion and errors. Trumball, Bingham, & Howard saw the problem, did a root cause analysis, and provided a corrective action via Amendments. Furthermore, the strict requirements of Amending the Constitution forces serious due diligence no activist court could ever possess or apply. LESSON – DO NOT SHORT CIRCUIT THE DELIBERATELY ARDUOUS AMENDMENT PROCESS.

As usual, the Constitution provides the answer to many of the issues people wrangle over. Do illegals have the same rights as legal US citizens? Section 1 of the Amendment first defines citizens as anyone “born or naturalized in the United States and subject to the jurisdiction thereof.” “The “citizens” in the Civil Rights Act were defined as “all persons born in the United States and not subject to any foreign power, ”

I have visited at least 15 countries and I never assume I had citizen rights in those countries and they never that offer the same.

“Miller’s interpretation reflected the conservative view that the Reconstruction Era Amendments did not nationalize law and did not upset the traditional federalism of a limited constitutional domain for the national government and broad reserved powers for the states.” Booyah!!

The dissenting arguments are, if not compelling, surely thought provoking. Faux government concerns [health] can certainly be used as a basis for infringing upon others rights. But the same can be said for Courts who exercise substantive due process and use strict scrutiny to advance political, progressive, cultural agendas. The former can be checked by the Judiciary. We are finding it much more difficult check activist Judiciaries. Even when checked their decisions can be issued years before the check can be applied.